States are actively asserting their Medicaid claims/liens against A Decedent’s Estates!

*By: Anthony J. Enea, Esq.

The Associated Press recently ran a story about a man named Salvatore LoGrande and how a year after his death Massachusetts Medicaid department filed a claim against his estate for $177,000 in order to recover their claims for Medicaid services and expenses provided on his behalf. Mr. LoGrande had been receiving care at home through the Medicaid home care program. When he applied for Medicaid he was advised that his beloved home did not disqualify him from eligibility as it was exempt as his homestead, which was correct. Unfortunately, he was not advised that if the home was in his name alone at the time of his death, and thus, a “probate” asset that Medicaid could assert a lien/claim against any “probate” asset. The same would be true in New York State.

For almost four decades, I have been counseling clients, especially those that cannot afford to pay for their care at home and/or in a nursing home without significantly depleting their life savings, to transfer said assets (non-IRA/non-Retirement) to an Irrevocable Medicaid Asset Protection Trust (MAPT) and in some circumstances, depending on their age and finances, to a Revocable Living Trust.

In New York Medicaid can only enforce claims and liens against “probate” assets (assets in the decedent’s name alone on date of death) after a Medicaid recipient’s passing. Thus, whether one is single or married, if applying for Medicaid home care or nursing home care in the near future is even a remote possibility, then avoiding “probate” should be strongly considered. According to the Associated Press article, New York and Ohio are the two leading states in enforcing their claims/liens against a decedent’s estate.

Unfortunately, many seniors believe that by having a Last Will & Testament they will avoid “probate” upon their demise. Sadly, this is not the case and if they die with assets (bank accounts, real property, condominiums, co-ops, stock, etc.) in their name alone, their Last Will and Testament is not valid and their named Executor has no access to their assets until the Will has been admitted to “probate” and accepted by the Court as a valid will issuing “Letters Testamentary” to the named Executor. Furthermore, because these assets are in the Decedent’s name alone, they are within reach of a Medicaid claim against the decedent’s estate.  This can be devastating to a family who thought that the family home, for example, was protected.

In conclusion, I do not believe there is any legitimate and valid reason to have a decedent’s estate go through “probate” if it can be avoided with an Irrevocable or Revocable Living Trust. This is especially important if Medicaid benefits have been received by the decedent during his or her life!

* Anthony J. Enea is the managing partner of Enea, Scanlan and Sirignano, LLP of White Plains, New York. He focuses his practice on Wills, Trusts, Estates and Elder Law.  Anthony is the Past Chair of the Elder Law and Special Needs Section of the New York State Bar Association (NYSBA), and is the past Chair of the 50+ Section of the NYSBA.  He is a Past President and Founding member of the New York Chapter of the National Academy of Elder Law Attorneys (NAELA).  Anthony is also the Immediate Past President of the Westchester County Bar Foundation and a Past President of the Westchester County Bar Association. He is also fluent in Italian. He can be reached at (914) 948-1500 or at [email protected]